EXECUTIVE PRIVILEGE HAS EXCEPTIONS

The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law. (Neri vs. Senate Committee on Accountability of Public Officers,
G.R. No. 180643 March 25, 2008)

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EXECUTIVE PRIVILEGE HAS EXCEPTIONS

Neri vs. Senate Committee on Accountability of Public Officers,

G.R. No. 180643 March 25, 2008

LEONARDO-DE CASTRO, J.:

FACTS:

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with
Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National
Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The
Project was to be financed by the People’s Republic of China.

The Senate passed various resolutions relative to the NBN deal. In the September 18, 2007 hearing Jose de
Venecia III testified that several high executive officials and power brokers were using their influence to push
the approval of the NBN Project by the NEDA.

Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He appeared in one hearing
wherein he was interrogated for 11 hrs and during which he admitted that Abalos of COMELEC tried to bribe
him with P200M in exchange for his approval of the NBN project. He further narrated that he informed
President Arroyo about the bribery attempt and that she instructed him not to accept the bribe.

However, when probed further on what they discussed about the NBN Project, petitioner refused to answer,
invoking “executive privilege”. In particular, he refused to answer the questions on:

(a) whether or not President Arroyo followed up the NBN Project,

(b) whether or not she directed him to prioritize it, and

(c) whether or not she directed him to approve.

He later refused to attend the other hearings and Ermita sent a letter to the senate averring that the
communications between GMA and Neri are privileged and that the jurisprudence laid down in Senate vs
Ermita be applied. He was cited in contempt of respondent committees and an order for his arrest and
detention until such time that he would appear and give his testimony.

ISSUE:

Are the communications elicited by the subject three (3) questions covered by executive privilege?

HELD:

The communications are covered by executive privilege

The revocation of EO 464 (advised executive officials and employees to follow and abide by the Constitution,
existing laws and jurisprudence, including, among others, the case of Senate v. Ermita when they are invited to
legislative inquiries in aid of legislation.), does not in any way diminish the concept of executive privilege. This
is because this concept has Constitutional underpinnings.
The claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power
textually committed by the Constitution to the President, such as the area of military and foreign relations.
Under our Constitution, the President is the repository of the commander-in-chief, appointing, pardoning, and
diplomatic powers. Consistent with the doctrine of separation of powers, the information relating to these
powers may enjoy greater confidentiality than others.

Several jurisprudence cited provide the elements of presidential communications privilege:

1) The protected communication must relate to a “quintessential and non-delegable presidential power.”

2) The communication must be authored or “solicited and received” by a close advisor of the President or the
President himself. The judicial test is that an advisor must be in “operational proximity” with the President.

3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing
of adequate need, such that the information sought “likely contains important evidence” and by the
unavailability of the information elsewhere by an appropriate investigating authority.

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the
communications elicited by the three (3) questions “fall under conversation and correspondence between the
President and public officials” necessary in “her executive and policy decision-making process” and, that “the
information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s
Republic of China.” Simply put, the bases are presidential communications privilege and executive privilege on
matters relating to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the three (3)
questions are covered by the presidential communications privilege. First, the communications relate to a
“quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement
with other countries. This authority of the President to enter into executive agreements without the concurrence
of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications
are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be
considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate
showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the
information elsewhere by an appropriate investigating authority.

Respondent Committees further contend that the grant of petitioner’s claim of executive privilege violates the
constitutional provisions on the right of the people to information on matters of public concern.50 We might
have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself
available to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only
that, he expressly manifested his willingness to answer more questions from the Senators, with the exception
only of those covered by his claim of executive privilege.